Constitutional Problems in Utah Voting Law

Utah is a special place. It boasts a beautiful, diverse landscape; a decent economy; and a strange populace (I know – I lived there most of my life and remain strange). Most of those who live in Utah are either members of the LDS faith, or are thought to be members of the LDS faith. Politically, they all vote Republican, except for those who don’t. (Which is Salt Lake City, a reactionary bastion of progressivism). Still, the Republican party dominates the political landscape. The Governor is Republican, the State House and Senate are predominantly Republican, and the entire Congressional Delegation is Republican (though only recently with the retirement of Jim Matheson). It is fair to say, then, that the Republican Party has a firm hold within Utah.

As a result, the primaries do the bulk of the electoral lifting. The Utah Republican Party has elected to select their nominees via a convention-caucus system. For the uninitiated, the state is divided into precincts which gather to elect delegates (the caucus). Having attended one myself, this is an interesting experiment in democracy. Neighbors question their neighbors on political views, gauging where they stand and asking them to defend positions. After the delegates are elected, they are tasked with the duty to nominate representatives of the party for the general election. In Utah, the nominee is often the de facto winner in the generals for most federal and statewide offices. The delegates vet the candidates by attending debates, speeches, Q & A sessions and finally the convention where votes are cast. Overall, this is a fantastically intimate experience relative to a direct primary.

Unsurprisingly, this process has left some candidates, including incumbents, out in the cold. As is expected, instead of looking internally, some of the outed incumbents and their well-to-do friends have expressed dissatisfaction at the process. This dissatisfaction includes claims that the process panders to political extremes, ignoring the fact that they once conquered this process on their way to political power. Thus was born the movement Count My Vote (CMV), an initiative to get an initiative on the ballot. The goal of this movement was to replace the caucus-convention system with a direct primary.

At first the movement had some momentum, though it appeared to loose steam later. Either way, the benevolent legislature authored a compromise known as Senate Bill 54 (S.B. 54), A hybrid system allowing both the caucus-convention system and a direct primary as a means for a candidate to enter the ticket as the party nominee. Here is a basic break down of the law from Michelle Mumford via utahpoliticohub.com:

1. Registered Political Party (RPP):

The RPP route is, verbatim, the CMV initiative option. To be on the political party’s primary ballot, candidates are required to

– obtain signatures of 2% of party members who reside in the political division of the office the person seeks.

-The primary is closed – only members of the party may vote – unless the party chooses to open the election to others.

Under RPP, if a party holds a convention, the winner of that convention has no automatic right to be on the party’s primary ballot, but must still get petition signatures to be on the primary ballot. There is no requirement that the primary election winner win by a majority of the vote, and there is no limit to how many candidates can be on the primary ballot. The winner of the primary is the party’s nominee on the general election ballot.

2. Qualified Political Party (QPP):

The QPP route is the legislative compromise route that keeps the caucus/convention system part of the nominating process. Under QPP, to be on the general election ballot, a party must

-provide for alternate delegates at convention OR remote balloting at convention,

-allow candidates to access the party’s primary ballot by petition, and

-open the party primary to unaffiliated voters.

Unlike RPP, the winner (or winners) of the party’s convention has a spot on the party’s primary election ballot without obtaining petition signatures.

Like RPP, there is no requirement that the primary election winner win by a majority of the vote, and there is no limit to how many candidates can be on the primary ballot. The winner of the primary is the party’s nominee on the general election ballot.

(The number of signatures required for the petition portion of the QPP option are a set number, as opposed to a percentage of registered voters. For instance, candidates for statewide offices would need 28,000 signatures. Also different than the RPP route, a QPP candidate can obtain signatures from unaffiliated candidates, since they are eligible to vote in the primary election.)

3. (and 4.) Write-in / Unaffiliated candidates:

A party could choose neither the RPP or QPP option and encourage their candidates to run as write-in or unaffiliated candidates in the general election. Such candidates will not be included in the primary elections, and will not have a party symbol next to their name (write-in candidates won’t even have their names on the ballot, obviously) on the general election ballot.

This compromise severely limits the ability of a party to nominate a candidate. S.B. 54 creates a run-around for candidates to achieve party branding without party support. Party nominations are not elections (not in the civic duty, right to vote sense). They generally reflect principles of democracy and free government, but are not under strict requirements to perform as a government body. They are primarily about presenting a political platform. Thus, controlling the nomination process is vital to maintaining ideological purity.

The major issue, constitutionally, is that the Republican Party (and other more complacent parties) have been refused the right to associate with a nominee regardless of ideological differences. What has been given is not access to the ballot, but access to a brand.

In my view, the bill is unlikely to pass muster constitutionally in whole or in part. The Supreme Court of the United States has been reluctant to prescribe the manner in which parties operate, including the manner in which a party nominates candidates for general election (or a state run primary). By the end of a series of cases, known as the White Cases, the Supreme Court ruled that a political party may not exclude voting based on race under the 15th Amendment, however few other cases have restricted what a party can do in the selection of candidates or restriction of voting.

The Supreme Court has stated that “any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” It is impossible for the Utah Legislators to restrict the party without restricting the members of a party. The court explained that by so doing “the State thus limits the Party’s associational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.” [emphasis added]

The Court further expounded that “the processes by which political parties select their nominees are not “wholly public affairs that States may regulate freely.” In fact the Court stressed “that when States regulate parties’ internal processes they must act within limits imposed by the Constitution.” Primarily they’ve ignored the freedoms of speech, assembly, and association – rights the Utah State Legislature ignored with their good intentions in passing S.B. 54.

Political parties have embraced principles of democracy differently; the caucus system is a uniquely American example. Contrary to accusations made, the caucus system does not prevent democracy from coming to fruition, but emphasizes more than just the voting process. The caucuses encourage neighborhoods to discuss issues in a specific forum as they select delegates. Democracy comes in many forms. Forcing a particular vision of democracy on parties is not a compelling interest of the State. Utah will likely have to show that this is a compelling state interest that is tailored narrowly to achieve that interest. However, I suspect the infringement on the party and its members is too great, primarily since there are other less intrusive means to encourage voting. Other states have alternate primary processes, but none so intrusive on a party as that of Utah’s law.

Despite the Supreme Court affirming that the State generally may not interfere with the nomination process and nominees chosen by parties, Utah Legislators chose to foray into these murky waters and attempt to limit first amendment protections by prescribing the manner in which parties select their candidates.

Utah appears to have made a bargain with the parties, permitting the caucus in exchange for an alternative means to party-sponsored ballot access and state support in running primary elections. This is in all likelihood an unconstitutional bargain. The U.S. Supreme Court has outright stated “[e]ven though government is under no obligation to provide a person, or the public, a particular benefit, it does not follow that conferral of the benefit may be conditioned on the surrender of a constitutional right.” [emphasis added] The State’s attempt to bargain the rights of association and speech in order to force an alternate primary process on parties is an unconstitutional use of government power. It removes the power of association and thereby speech.

The Utah Republican Party has pursued legal actions, including a failed injunction designed to delay the bill’s measures before the next election. This legal challenge by the Utah GOP has caused quite a stir with individuals and institutions continually calling for this unwarranted campaign to come to an end. Why? I genuinely believe that part of it is an unfortunate lack of understanding regarding some of the most basic constitutional rights as previously outlined. Many feel that instead of using those rights to combat a system they do not like, it is better to stir up problems on capital hill and use government force to institute change. What appalling lack of trust in the freedoms of speech and association. What an insult to citizens to assume an inability to self direct. Instead of convincing them to reform the State has forced them to reform. It is perplexing that CMV would advocate democracy, but only in a form of their choosing, decidedly undemocratic of them. What compounds my confusion is the claim that it is popular. That may be true statewide, but it does not appear to be supported within the Republican Party. If so the party has a method to amend their election process to reflect popular sentiment or dissenters are welcome to form an alternative party.

What further baffles me is how much I hear about the Constitution in Utah politics, but when people and organizations do not act in a particular manner, or adopt a particular view, it is quickly cast aside and diminished. Instead of embracing a broad interpretation of the freedom of speech (which is not necessary for this bill to be declared unconstitutional) the State of Utah pushes the boundaries of constitutional acceptability, eroding the very founding rights enshrined in the Constitution. This pattern of legislative behavior is in no way unique to Utah or to the Republican Party. It appears to be the history of governments to diminish liberties often under the pretense of seemingly virtuous causes. For that fact alone, the people of Utah should be grateful that the Utah Republican Party has decided to challenge this law.

James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to james@reasonedliberty.com or follow him on twitter @jcdevereaux1.